Summary
awarding forty percent of claimed costs for "readily understandable costs of litigation such as copying charges, delivery expenses and transcript costs"
Summary of this case from Charts v. Nationwide Mut. Ins. Co.Opinion
No. X08 CV 02 0192069 S
June 30, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO SET ASIDE VERDICT AND/OR REMITTITUR; PLAINTIFFS' MOTION FOR ATTORNEYS FEES AND PUNITIVE DAMAGES
The plaintiffs Gunnar Gerner and GW Chartering, Inc. (GW) brought this action for damages against Applied Industrial Materials Corporation (AIMCOR) American Carriers CT., Inc. (ACC) and Bulk Ocean Charting, Inc. (BOC) seeking money damages for breach of an agreement to hire Gerner as an employee and consultant for five years, for violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42-110a et seq. (CUTPA) and for misrepresentation, unjust enrichment and a violation of the Connecticut Unfair Trade Secrets Act, General Statutes §§ 35-50 et seq. (CUTSA). The defendant ACC filed a counterclaim claiming that Gerner and GW had violated CUTPA.
Following the presentation of evidence, the jury returned a verdict in favor of Gerner in the net amount of $282,230 on the breach of contract claim (Count One) and in favor of Gerner and GW in the amount of $12,500 compensatory damages, each, as against both AIMCOR and BOC on the CUTPA claims (Count Five) for a total of $50,000. The jury did not return a verdict on the misrepresentation, unjust enrichment or CUTSA claims (Counts Two, Three and Four) as it was instructed, with the parties' consent, to disregard those claims if it found for Gerner on the contract claim. The jury also returned a verdict for the plaintiffs on ACC's counterclaim.
I. Defendants' Motion
The defendants move the court for a directed verdict, to set aside the verdict and order a new trial, and for a remittitur.
A. Motion For Directed Verdict or New Trial.
The standards for reviewing a motion for directed verdict, or after verdict, a motion to set the verdict aside are essentially the same. The court must consider the evidence and all inferences drawn therefrom in a light most favorable to the successful party. Craine v. Trinity College, 259 Conn. 625, 635 (2002). A motion to set aside should not be granted unless the jurors could not reasonably and legally reach the verdict they reached. Id., 636. A court is empowered to set aside a jury verdict when it is contrary to law or unsupported by the evidence; however, recognizing that it may impinge of the parties' rights to a jury trial, the verdict should not be set aside where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. Carusillo v. Associated Woman's Health Specialists, P.C., 72 Conn.App. 75, 83 (2002).
AIMCOR and BOC argue that because the alleged five-year employment and consulting agreement was oral it was unenforceable because of the Statute of Frauds, codified in Connecticut at General Statutes § 52-550, and that Gerner failed to prove at trial an estoppel claim, i.e. that he had undertaken some act which he otherwise would not have undertaken and was injured thereby. See generally DeLuca v. C.W. Blakeslee Sons, Inc., 174 Conn. 535 (1978) (estoppel can be exception to Statute of Frauds); Glazer v. Dress Barn, Inc., 274 Conn. 33 (2005) (same).
Much of the evidence in the case involved a computer database developed by Gerner over many years to assist in the work of chartering ships and arranging and brokering the oceanic shipment of Commercial cargos around the world. The database contained, among many other things, information about port facilities and costs, vessel capabilities and costs, and historical data.
Gerner and the company he was majority owner of, GW, had handled almost all of AIMCOR's chartering and brokerage requirements for many years. In 2002 AIMCOR announced that it was going to do its own chartering and brokerage. This action effectively eliminated about seventy-five per cent of GW's business. AIMCOR offered a position to Gerner at compensation substantially less than he was making, but he declined, citing a desire for a five-year contract and the need to assist GW employees with finding other jobs since GW was effectively out of business.
Several months later negotiations resumed between AIMCOR, BOC and Gerner. There was evidence and the jury found that an oral argeement was reached between AIMCOR and BOC on one hand, and Gerner on the other for the employment of Gerner for five years. AIMCOR and BOC then requested that Gerner turn over the database to them, which he did, and it was copied and distributed to AIMCOR and BOC employees. Later AIMCOR and BOC sent Gerner employment agreements which termed his employment to be "at will," and Gerner sued.
The thrust of the defendants' argument that Gerner did not prove an estoppel is their contention that he did not suffer any injury because the database was owned by GW. This argument is unpersuasive.
Regardless of the ownership of the database, there was sufficient evidence for the jury to have found injury to Gerner. There was no question that he had a right to use the database and control its distribution. There was substantial evidence that AIMCOR and BOC coveted the database for their nascent brokerage business. So when they had the database in their possession, the jury could reasonably have concluded that Gerner's bargaining power had been significantly reduced resulting in the changed employment terms from five years to at will.
The minority shareholder of GW, Gary Molstad, when he learned that AIMCOR's business would no longer be directed to GW, had left GW for another business association taking a copy of the database, with Gerner's blessing.
Moreover, the jury could also have reasonably found that Gerner was the de facto equitable owner of the database. The evidence showed that GW ceased to be a going concern when AIMCOR switched its business in the spring of 2002. Molstad took his business to another concern, and by July all of its employees, except Gerner, had found other jobs or business ventures. Those assets of GW that existed had been effectively distributed to its owners with Gerner and Molstad having the database. The jury could reasonably have seen the defendant's hypertechnical argument for what it was and concluded that Gerner had an ownership interest in the database.
The defendants also argue that Gerner's actions do not fall within the estoppel exception to the Statute of Frauds because his action in turning over the database to them can be accounted for not as a result of the existence of the oral employment agreement for five years, but for some other reason. They correctly cite Glazer v. Dress Barn, Inc., supra, for the proposition that the action which gives rise to the estoppel or part performance exception be naturally and reasonably accounted for in no other way than by the existence of a contact. Defendants then opine that the jury could have concluded that Gerner turned over the database on the basis of the existence of an "at-will" arrangement.
The evidence does not support such an argument. When first approached by the defendants, Gerner did not turn over the database and insisted on a five-year contract. Moreover, having turned over the database and then receiving documentation from the defendants setting forth an "at-will" relationship, Gerner immediately rejected it, demanded the return of the database and commenced this action. The jury could reasonably have found, on this evidence, that the promise of a five-year contract was the only impetus for delivering the database.
It is also worth noting that this case provides at least two critical distinctions in the nature of the evidence provided by the plaintiff as compared to what occurred in Dress Barn. First, the delivery of the database by Gerner was not the continuation of an existing condition or consistent with prior acts. As just noted, it was the opposite of what had occurred previously. Second, whereas Dress Barn held that oral testimony was not competent proof to establish estoppel or part performance, in this case it was not testimony but conduct by Gerner, i.e. the physical delivery of the database, which was the proof. See Glazer v. Dress Barn, supra, 274 Conn. 70-71.
The defendants contend that it was error not to instruct the jury on the issues of actual and apparent authority. The court disagrees. While it is true that two witnesses including Ms. Petrafesa, testified that Ms. Petrafesa did not have authority on her own to offer five-year employment agreements this is not particularly relevant since Ms. Petrafesa testified she received authority to make an agreement with Gerner from Mr. Sweeny who unquestionably had such authority. Although the court did ask counsel early in the trial for proposed instructions on the issue of apparent authority, the court determined that there was no need for such an instruction because of subsequent testimony that Ms. Petrafesa always checked with Mr. Sweeny to obtain his approval of her actions.
In addition the lack of authority issue was raised by the defendants in the latter stages of the trial, but without the foundation of any factual allegations set forth in a special defense. It was a defense that was not pleaded.
The defendants have steadfastly maintained that the plaintiffs' cause of action based on an alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA) was pre-empted by the plaintiffs' cause of action brought pursuant to the Connecticut Uniform Trade Secrets Act, General Statutes § 35-50 et seq. (CUTSA). General Statutes § 35-57(a) states that the provisions of CUTSA "supercede any conflicting tort, restitutionary, or other law of this state pertaining to civil liability for misappropriation of a trade secret." Based on that language the defendant moved for summary judgment to dismiss the CUTPA count and moved to dismiss the same count during trial. Both motions were denied.
The defendants' present motion presents somewhat of a conundrum, since the CUTSA count was not considered by the jury. With the agreement of all parties the court instructed the jury not to consider plaintiffs' claim of a CUTSA violation, plaintiffs' claims of misrepresentation or plaintiffs' claims of unjust enrichment if the jury found in favor of Gerner on his contract for the reason that the claimed damages in those three counts were subsumed in the contract claim. The jury did not consider the CUTSA claim; no interrogatories regarding that claim were answered and no signed verdict forms on that claim were returned.
Nevertheless, the court will consider this portion of the defendants' motion. The plaintiffs' CUTPA claim was based on allegations that defendants acted unfairly by causing the plaintiffs to wind up GW's business, encourage GW business to go elsewhere and to relinquish the database. CUTPA proscribes unfair or deceptive acts or practices done in connection with the conduct of a trade or business. That statute provides a remedy for a spectrum of unfair business practices far beyond the misappropriation of trade secrets. CUTPA therefore exceeds the scope of CUTSA, but does not necessarily conflict with it.
The defendants have cited the case of On-Line Technologies, Inc. v. Perkin Elmer Corp., 253 F.Sup.2d 313 (D.Conn. 2003) which granted summary judgment dismissing a CUTPA claim that the district court found "alleges nothing more than CUTSA violations and their inevitable consequences." Id., 335. The District Court also adverted to language in On-Line Technologies' brief to the effect that to avoid preemption by CUTSA a state law claim must rely on "evidence distinct from the elements the plaintiff is required to prove under CUTSA." Id., 334. In this case, the plaintiffs as noted above, have alleged and relied on acts other than just misappropriation of a trade secret, and this court finds On-Line Technologies to be readily distinguishable.
The cases this court has reviewed indicate that a number of Superior Court decisions have held that both CUTSA and CUTPA claims may be pursued in the same action. See e.g. Mushroom Tray Research Group, LLC v. Nobile, Superior Court, judicial district of Stamford-Norwalk, CV 99 0173380 (April 28, 2000, Mintz, J.) ( 26 Conn. L. Rptr. 612) and cases cited therein; Matrix Investment Corp. v. Ward, Superior Court, judicial district of New London, D.N 567613, (September 16, 2004, Hanley, J.T.R.) ( 37 Conn. L. Rptr. 896). These cases support this court's view that plaintiffs' CUTSA count did not pre-empt their claim under CUTPA.
The defendants also contend that there was insufficient evidence to support a verdict finding a violation of CUTPA and that, to the extent the jury based its verdict on the claim that defendants unfairly caused the defendants to relinquish the database, these acts took place within the context of an employer-employee relationship which has been held not to fall within the definition of trade or commerce for the purposes of a claim under CUTPA. See Quimby v. Kimberly Clark Corp., 28 Conn.App. 660 (1992).
The short answer to these contentions is that defendants offer too narrow a slice of the evidence presented at trial, evidence which viewed in its entirety could reasonably have supported the jury's verdict. While perhaps not overwhelming there was sufficient evidence for a jury, exercising its prerogative to give more weight to some witnesses' testimony than others, to find that the defendants acted deceptively, unfairly or unscrupulously in their initial efforts to set up a business directly competitive with the business of GW and Gerner, and with the express desire of using the database and GW's best personnel, and to find that the defendants, having purportedly returned the database to Gerner and GW's attorney, actually kept and used the data. These actions were also not within the confines of any employment relationship.
Defendants argue that even if this court finds that there was sufficient evidence to support a verdict in favor of the plaintiffs, the amount of the verdict on Gerner's contract claim was clearly excessive. Plaintiffs' damage expert, Richard Proctor, testified that the present value of Gerner's damage claim for breach of contract was $830,000. This figure included the $30,000 by which Proctor concluded that Gerner's expenses in seeking to mitigate damages exceeded Gerner's income in mitigation. In the jury interrogatories, and as reflected on the verdict form, the jury found Gerner's breach of contract damages to be $845,000 before deducting an amount for mitigation of damages. Defendants contend that the $845,000 figure exceeds the maximum amount supported by the evidence by $45,000. They reason that since the jury found that Gerner did not take reasonable steps to mitigate damages (Interrogatory No. 3), and should reasonably earn $562,770 in mitigation of damages between 2002 and 2007 (Interrogatory No. 4), that the jury was mistaken in not deducting the $30,000 in "mitigation expenses" and had no basis to award gross damages $15,000 in excess of the maximum of $830,000 testified by Proctor.
The court agrees with defendants that since Proctor was the only witness who quantified Gerner's breach of contract damages there was no evidentiary basis to award gross damages in excess of $830,000. However, the court finds less convincing the argument that the jury was mistaken in not deducting the amount of mitigation damages. Interrogatory No. 3 asked whether the jury "found Mr. Gerner to have taken reasonable steps to mitigate his damages." The answer was no, but that does not lead inexorably to the conclusion that he took no steps. A court can reduce a damage award when the verdict is excessive as a matter of law. General Statutes § 52-216a. However, a court should not tinker with a jury's assessment of damages unless it is clearly exorbitant and excessive, or shocks the sense of justice so as to compel the conclusion that some improper factor influenced the jury. Wochek v. Foley, 193 Conn. 582, 586 (1984). Here, except for the $15,000.00 discussed above, the breach of contract damages fall with the necessarily uncertain limits of just damages and will not be disturbed. Bartholomew v. Schweitzer, 217 Conn. 671, 688-89 (1991). The court will grant a remittitur of $15,000.
If the remittitur is not accepted, Part II of this memorandum of decision, or at least significant parts of it, will be inoperative. Nevertheless, without predicting or prejudging the plaintiffs' response, it made sense to the court to deal with all post-trial issues at one time while they were fresh in mind.
II. Plaintiffs' Motion For Assessment of Punitive Damages, Attorneys Fees and Costs
CUTPA provides that when an action for relief under that statute is tried to a jury, the trial court, in its discretion, may award costs, reasonable attorneys fees and punitive damages. General Statutes §§ 42-110g(a)(d) and (g).
A. Punitive Damages.
The plaintiffs seek punitive damages of three times the total jury verdict in favor of the plaintiffs for compensatory damages of $332,000, or $996,000. The plaintiffs support this request by emphasizing testimony indicating that the defendants continued to use the database after they had purportedly returned all copies to plaintiffs and noting that the jury verdicts found the defendants had violated CUTPA "in a wanton, willful or malicious manner." The defendants respond by pointing out that the compensatory damages awarded by the jury for the CUTPA violation were $50,000. They contend that their conduct amounted to an inadvertent breach of contract, and they firmly believed they had not entered into five-year contracts with Gerner. They also contend that plaintiffs' requested punitive damages are "clearly excessive" and unsupported by cases decided under Connecticut law.
Both parties have relied on the case of Gargano v. Heyman, 203 Conn. 616 (1987) in which the Connecticut Supreme Court stated:
In order to award punitive or exemplary damages evidence must reveal a reckless indifference to the rights of others or an intentional or wanton violation of those rights . . . In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.
Id., 622 [quoting Venturi v. Savitt, Inc., 191 Conn. 588, 592 (1983) internal citations omitted.]
The court begins its analysis by first noting, as do the defendants, that while plaintiffs argue that awarding a multiple of the underlying damage award is a common method of establishing punitive damages, citing Staehle v. Michael's Garage, Inc., 35 Conn.App. 455 (1994) the underlying award for the CUTPA violation in this case is a total of $50,000, not the $332,000 sought to be tripled here. Second, while the jury made a determination that punitive damages were in order it was not asked to establish an amount, and under the statute, the jury's determination is advisory only.
Prior to the events giving rise to this litigation, Gerner and GW had maintained a long, mutually profitable and amicable relationship with AIMCOR and its personnel which included certain regular social contacts. AIMCOR and BOC, which was established to conduct the ship brokerage business conceived and started in 2002, professed an admiration for Gerner and GW's brokerage acumen, as well as a personal regard for Gerner. Nevertheless, business was business, and AIMCOR unilaterally announced it would start a new brokerage business thereby eliminating three-quarters of GW's business and practically all of Gerner's work. While Gerner was offered a place at the new business, it was at a substantially reduced level of compensation. However, the court finds it difficult to describe AIMCOR's and BOC's actions as being the product of an evil motive so as to support punitive damages based on a multiple of several times compensatory damages.
Having reviewed all the evidence, the court determines that a punitive damage award is appropriate, not for the purpose of enriching the plaintiffs, but to vindicate the purposes of the unfair trade practices statute which is to dissuade activities violative of the law. Such an amount is, in the court's judgment, one which is equal to the amount of compensatory damages awarded, that is $50,000.
B. Attorneys Fees.
Plaintiffs seek an award of attorneys fees pursuant to CUTPA. Specifically, that statute provides that "the court may award . . . costs and reasonable attorneys fees based on the work reasonably performed by any attorney and not on the amount of recovery." General Statutes § 42-110g(d). This court previously examined the law of attorneys fee awards under CUTPA in Stuart v. Stuart, Superior Court, judicial district of Stamford-Norwalk at Stamford, complex litigation docket, X08 CV 02 0193033 (February 10, 2005) and much of what immediately follows is drawn from that decision.
The trial court has considerable discretion in the area of making an award of attorneys fees under CUTPA. Gargano v. Heyman, supra, 203 Conn. 622 (1927). It is axiomatic that a party must prevail on at least a part of its CUTPA claim to be entitled to seek a fee award. Vezina v. Nautilus Pools, Inc., 27 Conn.App. 810, 821 (1992). CUTPA, however, only authorizes an award of fees which are related to the prosecution of a CUTPA claim and not those fees engendered by the prosecution of other claims in the suit. Jacques All Trades Corp. v. Brown, 57 Conn.App. 189, 199 (2000).
In this case, Gerner prevailed on his contract claims against AIMCOR and BOC, and both Gerner and GW prevailed on their CUTPA claims against AIMCOR and BOC. While there was a modicum of overlapping of the facts involved in these two theories of recovery for the most part they were separate, but complementary, claims.
CUTPA itself requires that any attorneys fees awarded must be "reasonable" and "based on the work reasonably performed by an attorney." General Statutes § 42-110g(d). The Connecticut Appellate Court has held that the factors set out in the decision of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) should be applied to determine the reasonableness of fees. Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 38 (1955). These factors are:
1. the time and labor required;
2. the novelty and difficulty of the questions;
3. the skill requisite to perform the legal service properly;
4. the preclusion of other employment by the attorney due to acceptance of the case;
5. the customary fee for similar work in the community;
6. whether the fee is fixed or contingent;
7. time limitations imposed by the client or the circumstances;
8. the amount involved and results obtained;
9. the experience, reputation and ability of the attorneys;
10. the "undesirability" of the case;
11. the nature and length of the professional relationship with the client; and
12. awards in similar cases.
Subsequent to the decision in Johnson v. Georgia Highway Express, Inc., supra, but prior to Steiger v. J.S. Builders Inc., supra, the United States Supreme Court, noting the factors enumerated in Johnson, faced the question of the relationship of results obtained to an award of attorneys fees. See Hensley v. Eckerhart, 461 U.S. 424 (1983). The Hensley court determined that where a party succeeded on only some of his claims for relief, a court must answer the question whether the failed claims were related or unrelated to the successful claims. It went on to state:
In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants . . . counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore, no fee may be awarded for services on the unsuccessful claim." Id., 461 U.S. 424, 434-35 (quotation marks, citation and footnote omitted).
The Hensley court also stated that:
Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorneys fees reduced simply because the district court did not adopt each contention raised.
Id., 440 The Connecticut Supreme Court has cited the rationale of Hensley with approval in upholding a trial court's rejection of contention that because a plaintiff had won on only three of five related counts, two-fifths of the fees should not be awarded. Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 195 (1986); see also Schnabel v. Tyler, 32 Conn.App. 704 (1993).
The court concludes that the Hensley approach has been adopted in Connecticut law and will apply it as appropriate to this case, with the caveat that CUTPA requires a fee award to be based on work performed and not on the amount recovered. In making its determination on this fee application the court will consider all twelve of the Johnson factors although as Hensley noted, many of these individual factors "usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." Hensley, supra, 461 U.S. 434 n. 9.
Plaintiffs request an award of attorneys fees and costs in the amount of $220,401.79. Attorney David Wallman has submitted an affidavit stating that attorneys fees amount to $156,629.50 and disbursements related to the case amounted to $63,772.29. An exhibit to the affidavit includes a computer generated schedule of the attorneys time sheets and the disbursements. The two attorneys responsible for the legal work in prosecuting the case charged $225 and $300 per hour. The defendants have not challenged these billing rates and the court does not find them unreasonable. See Stuart v. Stuart, supra. Additionally, the court finds the hours spent in prosecuting the matter through five days of trial, several pre-trial motions and several discovery controversies to be reasonable.
As set forth above, plaintiffs asserted five causes of action. The jury found for Gerner on his contract and CUTPA claims and for GW on its CUTPA claim. The remaining claims were not determined. The court concludes that Gerner's contract claim was distinct from either plaintiff's CUTPA claim in that, while there was some overlap in evidence, the evidence regarding offer, acceptance, terms, estoppel and damages had little connection with the CUTPA allegations and evidence. The other three counts: misrepresentation, CUTSA and unjust enrichment were based on allegations that were a mix of the contract and CUTPA allegations.
In this case, the court determines that the major thrust of plaintiffs' case involved Gerner's contract claim while each of the remaining claims, including the CUTPA claim, played a less, but not insubstantial role. Arguably, a rational resolution would be to award one-fifth of the attorneys fees incurred in the entire representation. On the other hand, the CUTPA count was one of two claims the jury decided, and they did not actually "lose" any of their claims. Therefore, there is a basis to allot half the fees to the CUTPA claim. A just resolution in this court's view is to apportion forty percent of the fees to CUTPA and award that amount.
C. Costs.
Pursuant to General Statutes § 42-110g(d) the court has discretion to award "costs" to the plaintiffs. In Miller v. Guimaraes, 78 Conn.App. 760 (2003) the Connecticut Appellate Court declined to allow an award of expert witness fees in a CUTPA case on the ground that the witness fees of the expert, an attorney, were not allowable under General Statutes § 52-260 (allowing fees to medical practitioners, accountants and real estate appraisers not including legal experts.) The Appellate Court did not mention or discuss the "costs" provision in Section 42-110g(d). In Duerr v. DiCesare, Superior Court, judicial district of New London, D.N. 566915 (October 1, 2004, Gordon, J.) ( 37 Conn. L. Rptr. 909) the Superior Court felt constrained to not award expert fees on the basis of Miller, although expressing some well founded reservations about the result. See also Scrivani v. Vallombroso, Superior Court, judicial district of New Haven at New Haven, CV 00 0441476, (January 27, 2005, Hadden, J.T.R.).
This court does not believe that Miller holds that expert fees are not allowable as costs under § 42-110g(d). It simply held the fees were not taxable costs under § 52-260. This court interprets § 42-110g(d) to permit recovery of litigation expenses regardless of whether they qualify as taxable costs. To limit the definition of "costs" in § 42-110g(d) to taxable costs would make it redundant of those statutes, including § 52-260, allowing taxable costs to a prevailing party. It would also be inconsistent with the legislative purpose of CUTPA to encourage private litigants to act on their own initiative to enforce provisions of the statute. See Hinchcliff v. American Motors Corp., 184 Conn. 607 (1981). This interpretation is supported by Bristol Technology, Inc. v. Microsoft, 127 F.Sup.2d 64, 82-84 (D.Conn. 2002) which allowed expert fees as recoverable costs under § 110g(d).
Plaintiffs seek $63,772.29 in reimbursement of expenses. A substantial amount of this ($18,182.70) consists of readily understandable costs of litigation such as copying charges, delivery expenses and transcript costs, and forty percent of these will be allowed. Other charges either are not adequately explained by plaintiffs or are otherwise not allowable. These are mediation expenses of $2,000 which were undoubtedly split between the parties, and an unexplained "adjustment" of $4,820.59.
Payments to experts included $20,130 to Mr. Proctor, $10,889 to John Simek, a computer system expert who testified about the defendants' use of the database, and $7,750 to Robert Small who testified about the importance and value of the database.
Based on what was presented at trial, Mr. Proctor's fee seems very high. Moreover, the bulk of his testimony was related to Gerner's contract damages and only a relatively small part was related to the CUTPA claim. The court will allow $1,000 of Mr. Proctor's fees as "costs." Mr. Simek's testimony related to the CUTPA claim and will be allowed in full. Mr. Small's testimony related to both the contract and CUTPA claim and one-half of his fee will be allowed as a cost.
To sum up, the court will allow as costs the following:
Proctor $ 1,000.00 Simek 10,880.00 Small 3,975.00 Misc. (40%) 7,273.08 $23,122.08
Conclusion
The defendants' motion for a directed verdict, or in the alternative to set aside the verdict and grant a new trial is denied. The defendants' motion for a remittitur is granted to the following extent; the court orders a remittitur in the amount of $15,000 in connection with the damages awarded to Gerner on the first count, thereby reducing the verdict in favor of Gerner on that count to $267,230. Pursuant to General Statutes § 52-228b Gerner shall have 30 days to accept the remittitur by filing an appropriate writing with the clerk. Absent acceptance by the plaintiff, the court will order a new trial.
If the remittitur is accepted, the court grants the plaintiffs' motion for punitive damages, attorneys fees and costs as follows: AIMCOR is ordered to pay Gerner and GW $12,500 each in punitive damages, and BOC is ordered to pay Gerner and GW $12,500 each in punitive damages. Further, the defendants AIMCOR and BOC are ordered jointly and severally liable to pay Gerner and GW collectively $62,651.80 in attorneys fees and $23,128.08 of costs.
TAGGART D. ADAMS, SUPERIOR COURT JUDGE.